Government and Governance LUMSA The principle of the separation of powers and the Rule of law The principle of the separation of powers and the principles of: legality, nondiscrimination/equality and freedom are basic elements of the Rule of law Separation of powers– theoretical model of the Enlightenment based on the English experience It avoids the concentration of the political power (one person or one social class) The tripartite system of separation of political powers Legislative, Each Executive, Judiciary power should be exerted by a different branch of the government The symmetry between acts and institutions in the classical tripartite system It is assumed a symmetry among the different types of actions and the Institutions Each institution 1) serves a function 2) through specific means of action “moyens d’action” Powers Legislative branch – Parliament - law Executive branch - Government- executes laws in general Judiciary branch – Courts – Decisions Difficult application of the clear-cut principle of separation of powers.. The model of the clear-cut division of powers mandates that each branch of the government has its own prerogatives and specific means of action: each power has a prerogative Nowadays the theoretical model is impracticable, and probably it has never been entirely applied. Cooperation among Powers Montesquieu_ De l’esprit des lois (1758) The three powers should rest: but due to the necessary movements of things they will be forced to act in concert “Les trois pouvoirs devraient rester en repos: Mais pour le nécessaire mouvement les choses seront contraintes à procéder de concert” The model doesn’t fit the EU -inapplicability of the model to the EU- A fixed application of the separation of power is impracticable too: each Institution exercise different functions through many ways of action The EU Commission exercises the legislative power (initiative) and the EU Parliament and the Council are colegislators Powers and functions of the EU Institutions a) The European Commission The Commission: -- It shall oversee the application of Union law shall oversee the right application of primary and secondary European Union law; -- It can issue recommendations and opinions; -- It participate the decisional activity of other Institutions (right of initiative and intervention during the legislative procedure); -- it can exercise pure normative power or delegated by the Council of Ministers -- Proposal: green papers, white papers, programmes Asymmetry and Separation At European Union level it is difficult to imagine a rigid separation of powers The EU Commission has many functions: legislative, the task to represent the general interest of the Union, the job to put EU’s common policies. These functions are attained by means of different “ways of action”. b) The European Council According to the TEU the EU Council defines the general political directions and priorities of the Union (main centre of political decision) it exercises: -The coordination of the general economic policies of Member States; -Pure normative power -Decides and carries out the CFSP (art. 26 TEU) -Coordinates the action of the MS and adopts decisions concerning police and judicial cooperation (criminal law) -Entrusts the Commission with the regulatory power of execution Definition: The Council The Council = Council of Ministers Acts: Normative: regulations, directives Decisions, actions, positions (CFSP) Conclusions, declarations, resolutions, opinions AFSJ (ex III pillar + asylum and immigration law) International Agreements The Council According to the Treaty establishing the European Economic Community (Rome 1957), the Council played the role of legislator in a context of separation of powers from the Commission At the beginning as a general rule, and now according to the Treaty, the Council cooperates with the Commission during the legislative process The Council, jointly with the European Parliament, exercise the legislative function (ordinary legislative procedure = codecision) c) The European Parliament The European Parliament: - exercises the legislative power together with the Council. - exercises functions of political and budgetary control: 1.It approves the budget of the Union (Council); 2.It exercises a function of control on the activity of the Commission and of the Council; The EU Parliament The EU Parliament has gained more power in the process of appointment of the Commission Motion of censure. Plurality of functions - plurality of instruments (normative or not, and binding or not).